I’m Confused, I Thought Republicans Respected The Constitition

The Republican National Committee is out with a new ad today that hits President Obama over underlings who have asserted the protection of the Fifth Amendment before Congressional Committees:

There’s one glaring inaccuracy here that I think needs to be pointed out. The MF Global part of the ad strikes me as absurd. MF Global is (was?) a private investment firm with no connection to the Obama White House other than the fact that Jon Corzine is (was?) the Chief Executive Officer. Lumping the footage of the MF Global employees who asserted their Fifth Amendment rights together with people from the Department of Energy testifying about Solyndra and people from the GSA testifying about the recently revealed Vegas fiasco strikes me as completely without merit, especially considering the fact that Republicans spend the entire Bush Administration objecting to efforts by the left to tie Dick Cheney to Halliburton’s current activities even though he left the company before becoming Vice-President.

Beyond that, however, I’ve got to say that I find something particularly offensive about this ad and the suggestion it makes that there’s something wrong with asserting one’s right to remain silent. For a party that claims to respect the Constitution, it strikes me as hypocritical to then turn around and insinuate, as this ad clearly does, that there’s something wrong with someone asserting their Constitutional rights. If you truly respect the Constitution, that means respecting all of the Constitution including the part that allows someone to refuse to answer questions under oath from a Congressional Committee that, in addition to having an oversight role, also clearly has a political agenda. Sadly, it’s the kind of implication that is likely to play well in the hustings because one generally finds the public reaction to the privilege against self-incrimination to end with the thought “well, if they didn’t have anything to hide they wouldn’t plead the Fifth.”

That, of course is the implication that this ad clearly seeks to draw in the mind of the viewer, along with the unstated but rather obvious implication that their silence is part of a White House orchestrated coverup. In reality, it’s far more likely that these people are acting on the advice of their counsel given the fact that there are ongoing criminal investigations going on in both the Solyndra and GSA matters at this point. Testifying under oath before Congress without knowing whether ones words could end up becoming the basis of a criminal charge is positively idiotic, and it would have been malpractice for an attorney not to advise their client to assert their 5th Amendment rights. For confirmation of that fact, one need look no further than the case of Roger Clemens, who foolishly volunteered to testify before a Congressional Committee when he didn’t have to and is now again on trial for perjury (the first trial having been dismissed when prosecutors accidentally used inadmissible evidence during their opening statement). Not only is it not surprising that these individuals plead the 5th, it would have been surprising if they hadn’t.

I know what some are going to say, all’s fair in politics. And that’s true I suppose. Nonetheless, perhaps it’s because I’m am attorney but this kind of ad offends me deeply. Sadly, it will probably be quite effective.

About Doug MataconisDoug holds a B.A. in Political Science from Rutgers University and J.D. from George Mason University School of Law. He joined the staff of OTB in May, 2010 and also writes at Below The Beltway.
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Comments

Republicans love themselves some Constitution….except for the parts they don’t.
The 1st…when applied to any religion other than their own.
The 4th.
Of course the 9th…too vague.
The 14th.
Certainly the 16th.
The 17th.
Now…the 5th.
Nothing new to see here.

Hell, this is nothing. Wait until September and October. Team Obama and Team Romney both will have vast sums of money with which to run negative attack ads. It’ll get ugly. Then it’ll get uglier.

All indeed is fair in politics, unless factually untrue or per se slanderous. Shit, if I were a political candidate literally 100% of my campaign ads would be negative attacks against my opponent. Negative attacks work. This has been proven time and time again. The “Daisy” ad. The Willie Horton ad. The DUI thing against Bush 43. The Swift Boat thing. D’Amato vs. Schumer. Mary Landrieu vs. Suzanne Terrell. Jack Ryan’s sexcapades with Jeri Ryan. Meg Whitman’s maid. Politics ain’t a game a bridge. There are no points for 2nd place.

Sadly, it’s the kind of implication that is likely to play well in the hustings because one generally finds the public reaction to the privilege against self-incrimination to end with the thought “well, if they didn’t have anything to hide they wouldn’t plead the Fifth.”

I used to think like that, especially in regards to a police officer asking to search your car/house without a search warrant. My friend and I had a discussion and how it is my constitutional right to say no, even if I didn’t have anything to hide. That we can (and should) protect ourselves whenever we can. That changed my viewpoint on the subject. Now whenever I hear someone use that argument, I figure that they just don’t believe in someone protecting themselves (and realizing their constitutional right).

There’s an excellent series of videos on YouTube on citizens rights in police encounters that boils down to the general idea that you don’t have to tell the police anything other than who you are. (Technically, you don’t have to tell them that either but if you don’t have ID on you they’re going to bring you in and hold you until they can verify your identity so failing to do so is usually a pretty dumb idea)

Saying that it’s somehow an attack on the Constitution to criticize someone for invoking their fifth amendment rights is akin to arguing that it is an attack on the Constitution for criticizing Ozzie Guillen for invoking his first amendment rights. Just because you have a right, does not mean you are free from criticism when you utilize it.

This is what I’ve found, actually. Although I will say that the self-incrimination privilege is one that most people never quite understand the importance of unless and until they need to take advantage of it.

@Stormy Dragon: Dude, you do realize, don’t you, that the U.S. Constitution only applies to government actions against U.S. citizens? FYI, firing a Hellfire missile at a Pakistani camping out in Afghanistan could not possibly violate the 5th Amendment’s due process clause. Also, FYI, if your real beef is with terminating U.S. citizens overseas when said citizens are engaged in terrorism then you should read the U.S. Supreme Court’s decision that upheld FDR’s internment camps for Japanese-Americans and then juxtapose accordingly.

@Ron Beasley: Ron, all wingers do that, both on the extreme right and the extreme left. The extreme right concerning the 1st Amendment, for example, loves the free exercise clause and tends to ignore the establishment clause. The extreme left, on the other hand, is the mirror image: they love the establishment clause and are insouciant about the free exercise clause. The extreme right wants to do away with birthright citizenship. The extreme left would prefer to erase the 10th Amendment and to re-write the 2nd Amendment. The extreme right doesn’t believe equal protection possibly can apply under any circumstances to homosexuals. The extreme left doesn’t believe that “public use,” in the context of eminent domain, in any way is limited. Believe it or not the far right neither has a monopoly on stupid nor crazy.

@Doug Mataconis: What about putting Guillen on leave? In both cases, we’re talking about repercussions of taking advantage of our Constitutional rights. Neither are an attack on the Constitution itself or the existence of these rights. Between the two, Guillen’s repercussions were actually more material than being used in a political ad.

I mean, look, if I were worried about prosecution even if I did nothing wrong, I would invoke my fifth amendment rights. Thank heavens they’re there. That doesn’t mean, however, that I am immune from criticism for choosing to do so. Or that someone criticizing me for putting my own legal interests ahead of disclosure is attacking the Constitution by doing so.

The First Amendment does not apply to private entities like the Miami Marlins. If they decided, for business reasons that Guillen’s comments were such that discipline was warranted, that is their choice. In fact, if they’d decided he should be fired for them that would also have been their choice. The First Amendment doesn’t apply in this situation

I think if you change this situation slightly and you have someone in the Administration invoking the Fifth, I would say that your right not to incrimate yourself from criminal liability does not insulate the Administration from the political/public relations consequences of doing so.

Do the same rules apply to private entities? I don’t know. Though the only reason I probably know about this is that the Republicans want to attribute political consequences on the Administration, which I think is pretty bogus. I think the Administration botched this one based upon the internal agency memos/correspondence that have already been released. I guess the image of taking the Fifth is more powerful than reading the dozens of pages of pdfs that are available.

Does the 5th Amendment apply to political ads? You keep wanting to argue that Guillen isn’t protected from being reprimanded. I agree! But I don’t see why Obama’s underlings should be protected or immune from political ads or why political ads are any more an assault on the Constitution from firing someone for saying something they are Constitutionally permitted to say.

If the former isn’t protected from material loss (and we agree it is not), then why is the latter protected from criticism and why does the latter represent an attack on the Constitution when for former doesn’t?

The First Amendment does not apply to private entities like the Miami Marlins. If they decided, for business reasons that Guillen’s comments were such that discipline was warranted, that is their choice.

Exactly right. We all have first amendment rights. They do not protect us from consequences if we say things that piss our bosses off. Guillen chose to make comments that are certainly harmful to the business that pays his salary. He is free to do so, but there is nothing in the First Amendment that shields him from the repercussions of his remarks.

Guillen’s job has a PR aspect, and he gets paid very well. If he worked for me and the situation was the same, I would put the hammer down.

I think I made my point emphatically clear. The problem I have with the ad is the implication that there is something wrong with a person choosing to exercise their 5th Amendment rights. In the contest of a political ad, I find that offensive.

I don’t think that we should assume guilt because someone took the 5th. But I also do not think that decision should be considered beyond reproach, or that any reproach is an attack on the 5th Amendment itself. You can fully believe that they should have that right and yet come to unfavorable conclusions for their expression of that right. Just as you can support the right to free speech and think someone did themselves and everyone a disservice by exercising it.

“The Republican National Committee is out with a new ad today that hits President Obama over underlings who have asserted the protection of the Fifth Amendment before Congressional Committees”

This is consistent with current conservative movement “Originalist thinking” on the matter. At the time the founders were crafting our Constitution there was no Democratic Party, therefore, the current Democratic President and his officials are not entitled to Fifth Amendment protections.

In one deposition, Rick Scott (R, now governor of FL) pleaded the 5th 75 times. And he did this in a way that arguably amounted to “a manipulation of the legal system” (link). Surely it must be possible to find Republicans who condemned him for this, right?

I find myself considering an exception to the 5th Amendment — it doesn’t apply to public officials being asked about things they did under color of law. Or, at least, it would be grounds for immediate dismissal and forfeiture of all benefits.

This is consistent with current conservative movement “Originalist thinking” on the matter. At the time the founders were crafting our Constitution there was no Democratic Party, therefore, the current Democratic President and his officials are not entitled to Fifth Amendment protections.

@Herb: May I cordially invite you to either 1) explain how a government official is entitled to both claim 5th Amendment privilege when asked “did you approve this particular activity” and keep his job, or 2) bite me?

The former option is if you actually care about the topic; the latter is if your only interest is in insulting me.

@Jenos Idanian: You’re right. I apologize. I was needlessly insulting.

I can only explain to you that the 5th amendment “entitles” Neely (and anyone else) to remain silent. And that if you really wanted accountability, then do not look to congressional hearings, which are usually (not always, but usually) about politicians scoring rhetorical points for the cameras.

Don’t worry. With or without these hearings, Neely will not be in his job for long and the GSA will be austere for years to come.

And I’ll back off slightly on my position — any government official has the right to invoke the 5th Amendment under these circumstances, but it should be considered a gross enough violation of their employment as to merit immediate termination and forfeiture of all benefits. When they’re “on the clock,” we have every right to ask them about the performance of their duties while they’re working for us. If they refuse, it’s gross insubordination.

As far as Congressional hearings go… I have zero faith in the Holder Justice Department to carry out their duties in any kind of responsible manner. Congressional hearings (like the ones on Fast & Furious) might not be the best solution, but they’re better than nothing.

No person…shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation (nor shall any political party make internet videos that criticize government officials for invoking this amendment).

This situation has already been dealt with for police officers. It was ruled that they cannot be compelled to answer questions in an administrative investigation that could be used against them in a criminal one. So they are granted immunity for what they say in the internal affairs investigation in regards to any criminal charges, i.e., what they say can’t be used in the prosecution. Therefore, they must answer the administrative inquiry truthfully or be terminated.

The committee could do the same. That is, give immunity for the testimony before the committee but that wouldn’t help the politicians who’d want the testimony given in public, which would could compromise the criminal investigation with information the investigators are not permitted to know due to the immunity.

Surely, you are not that naive to think either party, especially the political elite have anything respect for the Constitution. That document interferes with their brilliant plans.

I got transferred to DC in late 1999 and was exposed to the local news which carried all sorts of briefings by Congress people no matter their district. One thing quickly became obvious, the routine refrain was ‘I have this amazing plan and would succeed to if it weren’t for that meddling Constitution.’ One day it would be Republican, the next a Democrat. But they had bipartisan contempt for the document that kept them off the backs of the people.

That, rhetoric, died away after 9/11 but only the public pronouncements, the dislike of Constitution for interfering with their genius remains and is a common trait for those hoping to impose their brilliant plan on the People.

That is, give immunity for the testimony before the committee but that wouldn’t help the politicians who’d want the testimony given in public, which would could compromise the criminal investigation with information the investigators are not permitted to know due to the immunity.

Well said. And to that point, there have been closed door congressional hearings/investigations in the past.

That said, since at least the advent of broadcast media, a key function of congressional hearings has been their “publicness” — either for the goal of shaming (see this example) or in some cases as campaign tools.

This situation has already been dealt with for police officers. It was ruled that they cannot be compelled to answer questions in an administrative investigation that could be used against them in a criminal one.

I’m not sure why police officers should get this special protection. For anyone working at a normal place of business, if you are under investigation for workplace misconduct and, in the course of it, your employer discovers you were engaged in criminal conduct as well, your conversations with your management are not in any way priveleged.